Chris Dewes, partner in Lodders’ Commercial Property and Investment team takes a look at the complex area of right of light and why developers should not overlook the issue.
When developing a site, property developers will be keen to ensure that there are no covenants, adverse rights, or other matters that may prevent or restrict the proposed development. Rights of light should be considered as part of this process.
What is a right of light?
A right of light is the legal right for buildings on adjoining land to receive light from the site.
A right of light can be expressly granted in a transfer of land or in a deed, and it can also arise from ‘long use’ – any adjoining properties enjoying uninterrupted light for any continuous period of at least 20 years will generally acquire a right of light.
Where a development impacts the adjoining land’s right of light (typically where less than 50% of a room will remain adequately lit) it may be possible for the owner of the adjoining land to obtain an injunction.
A prohibitory injunction is where the developer is prevented from undertaking the proposed development.
A mandatory injunction would require the developer to take down the development that is adversely affecting the adjoining site as was the outcome in the case of HXRUK II (CHC) Limited v Heaney.
Both of these scenarios clearly have serious consequences for the developer, especially if the developer has obligations to future tenants, purchasers, or funders.
What steps should developers take?
If there is a concern that the proposed development of the site may impact any buildings on the adjoining land the first port of call would be to appoint a specialist rights of light surveyor. The surveyor will carry out an analysis of the development and confirm whether or not the adjoining land is impacted.
A solicitor would then work in conjunction with the surveyor and analyse the title(s) to the adjoining land to identify if deeds of release will be required in respect of those interests adversely affected by the proposed development.
What are the options if the adjoining land is impacted?
If the adjoining land is impacted there are a few options open to the developer. It may be possible to insure the risk either with a “wait and see” policy, where the developer commences the development relying on the policy to respond if the owners of the adjoining land make a claim. Alternatively, “an agreed conduct” policy may be preferred as it allows the developer to negotiate with the owners of the adjoining land to try and agree to putting in place deeds of release. Under an agreed conduct policy claims against the developer are effectively capped.
It may be appropriate to open up discussions with the owner of the adjoining land to agree deeds of release subject to paying an agreed premium without taking out an insurance policy, especially if the developer’s acquisition of the site is not unconditional.
Other options including trying to acquire the adjoining land that is impacted or to persuade the local authority to compulsory acquire the development site to extinguish the adverse right through the use of section 203 of the Housing and Planning Act 2016.
Rights of light is a complex area and developers are urged to take advice on such issues.
Contact usChris Dewes partner in Lodders Property and Investment team takes a look at the complex area of rights of light and why developers shouldn’t overlook the issue.
